Citation Nr: 21065002 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 87-33 820 DATE: October 22, 2021 ORDER From October 23, 1992 to November 23, 1992, a rating of 40 percent for residuals, fracture L1, L5 with degenerative intervertebral disc disease (back disability) is granted. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for a back disability prior to October 23, 1992, and thereafter in excess of 40 percent, is remanded. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to service connection for headaches, to include as secondary to a back disability, is remanded. FINDINGS OF FACT 1. From October 23, 1992 to November 23, 1992, the Veteran's back disability was manifested by at least lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 2. The Veteran's service-connected disabilities preclude him from securing or maintaining a substantially gainful occupation. CONCLUSIONS OF LAW 1. From October 23, 1992 to November 23, 1992, the criteria for a rating of at least 40 percent for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5285, 5295 (1986). 2. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1968 to July 1972, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1987 and December 2013 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In this regard, the April 2020 Board decision vacated the January 1988 Board decision that originally adjudicated the appeal of the March 1987 rating decision. In December 2019, the Veteran and his wife testified at a videoconference hearing before the undersigned. In April 2020, the Board vacated the January 1988 Board decision, granted an increased rating, and remanded the appeal seeking service connection for headaches and an increased rating for a back disability for additional development. The Board also remanded the issues of entitlement to an earlier effective date of service connection and an increased initial rating for a heart disability for issuance of a Statement of the Case (SOC). The Veteran has perfected his appeal of these issues and has requested a Board hearing. The Board has bifurcated the increased rating claim on appeal to allow a partial grant on the present record. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an appeal is generally within the Board's discretion). In November 2020, the AOJ denied entitlement to a TDIU. Although the Veteran has not appealed this issue, it remains in appellate status as part of the increased rating claim on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of an increased initial rating for radiculopathy is part of the increased rating claim on appeal. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. 1. From October 23, 1992 to November 23, 1992, a rating of 40 percent for a low back disability is granted. The October 2020 rating decision granted a 40 percent rating for the Veteran's back disability from November 23, 1992. The AOJ explained that this is the earliest date a 40 percent rating is supported by the evidence of record. The version of 38 C.F.R. § 4.71a, DC 5285 (residuals of fracture of vertebrae) in effect when the Veteran's 1986 claim was filed permitted rating by analogy to DC 5295 (lumbosacral strain). The maximum rating under that version of DC 5295 was 40 percent for severe strain, with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. Here, the Board adopts the favorable finding in the October 2020 rating decision that the Veteran's back disability met the criteria for a 40 percent rating under DC 5295 from November 23, 1992, as it is not clearly erroneous. Moreover, while the AOJ explained that November 23, 1992 was the earliest date of objective evidence that the 40 percent criteria were met, the Board finds that a 40 percent rating is warranted from October 23, 1992. In this regard, the November 23, 1992 treatment note includes the Veteran's report that he has experienced severe back pain for one month, i.e., from October 23, 1992. See November 23, 1992 Chiropractor Note. The remainder of the increased rating appeal is addressed below in the remand section. 2. Entitlement to a TDIU is granted. As noted above, while the Veteran did not appeal this issue, it is part and parcel of the increased rating claim on appeal. Initially, the Board observes that there has been substantial compliance with the prior remand directives. The Veteran provided statements verifying his income from employment from 2015 through 2019. See May 2020 Income and Tax Statements. While tax statements were not received for 2013 and 2014, the Veteran reported earning $1,200 per month for those years. See December 2019 VA Form 21-8940. Moreover, the Veteran and his attorney have not disagreed with the statement in the November 2020 Supplemental Statement of the Case (SSOC) that the Veteran earned at least $14,400 since 2013. See November 2020 SSOC at 15-16. The Veteran did not specifically advance any argument as to the issue of entitlement to a TDIU. However, the Board observes that on the December 2019 Request for Employment Information in Connection with Claim for Disability Benefits and Application for Increased Compensation due to Individual Unemployability, the Veteran noted that due to his service-connected disabilities he can no longer drive a truck and he now only works in the office for five to ten hours per week. See December 2019 VA Form 21-8940; December 2019 VA Form 21-4192. Moreover, he asserted that his service-connected disabilities have precluded substantially gainful employment from January 1, 2013. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran meets the schedular criteria for entitlement to a TDIU. Thus, the next question is whether his service-connected disabilities preclude him from securing and maintaining a substantially gainful occupation. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop). See 38 C.F.R. § 4.16(a). Prior to the asserted onset of total disability in 2013, the Veteran reported self-employment as a truck driver since 1987, with income of up to $80,000 per year. From 2013 to 2019, he reported work in the office of the truck driving company, for five to ten hours per week, earning $1,200 per month ($14,400 per year). See December 2019 VA Form 21-8940. This is approximately in accord with his submitted W2 statements, which show $15,600 in income for each year from 2015 to 2019. Here, since 2013, the Veteran's income from employment has exceeded the poverty threshold for one person. That threshold was $12,119 in 2013 and has increased each year since then, reaching $13,300 in 2019. Thus, the economic criteria for entitlement to a TDIU are not met at any time since the asserted onset of total disability in 2013, unless marginal employment is shown on a facts-found basis. At a November 2020 VA-contracted psychiatric examination, the Veteran reported that he was mostly retired and that his son took over the trucking business for him for two years, but noted his son did not want it so they were planning to close up the business and auction it off the following month. See November 2020 Psychiatric Examination Report. Thus, the issue of marginal employment is raised by the record, as the record shows that the Veteran's continued employment over at least a portion of the appeal has been due to his desire to continue participating in the family business. The Board emphasizes that the Veteran's income from employment is only slightly in excess of the poverty threshold for one person. Here, the Veteran has limited ability to bend, twist, lift, stand, and walk due to back pain. See July 2020 Back Examination Report. These activities are critical to the ability to drive, load, and unload a truck, the only area where the Veteran has substantial experience. In this regard, the Veteran has a high school diploma and is not shown to have the education or skills that would allow him to earn substantially gainful income from employment in a non-physical occupation. The Board acknowledges that the Veteran worked for five to ten hours a week in the office for a few years while others drove trucks in his business. However, as noted above, this is consistent with protected employment in a family business once the Veteran was no longer able to drive. See November 2020 Psychiatric Examination Report (noting Veteran tearfully describing that he has worked with some clients for 35 years). The Board will not use this as the sole basis to deny the claim, as there is not more than reasonable doubt that his continued employment in this capacity was protected employment. Finally, the Board acknowledges that no examiner has opined that the Veteran's service-connected disabilities preclude substantially gainful employment. However, whether a veteran is able to secure and maintain a substantially gainful occupation is a question for VA adjudicators, not a medical question. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board will defer assigning an effective date of a TDIU to avoid any prejudice to the Veteran. See Urban v. Principi, 18 Vet. App. 143 (2004). REASONS FOR REMAND 3. Entitlement to a rating in excess of 10 percent for a back disability prior to October 23, 1992, and thereafter in excess of 40 percent, is remanded. 4. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Remand is necessary, as the July 2020 examiner did not address whether it is at least as likely as not that the Veteran has had intervertebral disc syndrome (IVDS) at any time during the appeal. The issue of entitlement to an increased initial rating for radiculopathy is intertwined with this issue. Additionally, the examiner opined that the Veteran would have additional pain during flare-ups that significantly limits functional ability, but the examiner gave the same range of motion during a flare-up as at baseline. On remand, an addendum opinion should be secured addressing these deficiencies. Updated VA and private treatment records should also be secured. 5. Entitlement to service connection for headaches, to include as secondary to a back disability is remanded. Remand is necessary, as the October 2020 examiner's opinion is inadequate. In this regard, the examiner's opinion is based in part on the fact that the Veteran's headaches have largely resolved. However, the key question is whether the Veteran's headaches present at any time since 1986, even if subsequently resolved are or were proximately due to or aggravated by his back disability. On remand, an adequate addendum opinion addressing this question should be secured. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records, if any. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. After completing #1 and #2, secure an addendum opinion as to the nature and etiology of the Veteran's headaches since 1986, even if subsequently resolved. The claims file should be made available to and should be reviewed by the examiner. No additional examination of the Veteran is necessary unless the examiner determines otherwise. The examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's headaches: (a) are proximately due to the Veteran's service-connected back disability; or (b) have been aggravated (worsened beyond natural progression) by the Veteran's service-connected back disability. Please answer each sub-part of this question separately. For the purposes of this question, there is no requirement for bed rest prescribed by a physician. In addressing this question, the examiner's attention is invited to the Veteran's chiropractic treatment notes showing that his headaches are related to muscle spasm. The examiner should specifically discuss this note in any opinion provided. Moreover, even if the Veteran's headaches or improved or resolved during the pendency of this appeal (which has been pending since 1986), the examiner should discuss the etiology of the Veteran's headaches that were present in 1986. The examiner is advised that the Veteran's claims file showing that he was service-connected for fracture residuals in 1972 was lost and was not recovered until 2002, and that the January 1988 Board decision that denied service connection for an already service-connected back disability has been vacated. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 4. After completing #1 and #2, secure an addendum opinion as to the nature and severity of the Veteran's back disability. No additional examination of the Veteran is necessary unless the examiner determines otherwise. The examiner should respond to the following: (a) Please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's back disability (residuals, fracture L1, L5 with degenerative intervertebral disc disease) with radiculopathy has manifested as intervertebral disc syndrome at any time since 1986, even if subsequently resolved. The examiner's attention is invited to the Veteran's diagnosis of degenerative intervertebral disc disease and right lower extremity radiculopathy. If unable to opine without speculation, the examiner should so state and explain why this is the case. (b) The examiner should also opine as to the degree of functional impairment of the Veteran's back disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. In addressing this question, the examiner is advised that the July 2020 examiner reported a baseline range of motion that is equivalent to the range of motion during flare-ups, which is inconsistent with the examiner's statement that additional functional loss was the result of increased pain during flare-ups. If the estimated range of motion during flare-ups given by the July 2020 examiner is correct, please reconcile these statements. If a requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why this is the case. 5. Upon readjudication, please rate the Veteran's back disability from September 19, 1986, and please consider the former and revised versions of any applicable diagnostic codes during the appeal period. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.